Published on Wednesday, April 26, 2006 by the Oregonian
Judge Nixes U.S. Bid for Secrecy in Oregon Suit
Wiretaps - The decision marks a rare challenge to government requests to keep legal filings from opponents
by Ashbel S. Green
A federal judge Tuesday rebuffed the U.S. government's
initial attempt to file a secret declaration in an Oregon
lawsuit challenging the legality of the National Security
Agency's warrantless surveillance program.
"At this point, the government -- in my view -- has not made a case that it cannot furnish public information that would support its position," U.S. District Judge Garr M. King said in a closed telephone conference call with attorneys.
King gave federal officials until May 12 to provide a better argument. King said he might still consider looking at the secret filing in the future, but he is one of the few judges across the country to challenge government attempts to discuss national security issues out of the presence of opposing attorneys.
"To the extent it can be done without compromising national security interests, a litigant has a right to know the legal and factual positions being taken by the government so they can respond to them," King said, according to an audio transcript of the conference call.
"I believe the court should avoid, if possible, receiving secret declarations from one side and basing decisions on facts or arguments not disclosed to the other side," King said.
The lawsuit at issue was filed in late February by Al-Haramain, an Ashland-based Islamic charity, and two of its attorneys. The suit claims that federal officials illegally intercepted telephone calls between Soliman al-Buthe, an Al-Haramain director, and two attorneys based in Washington, D.C.
Since The New York Times revealed the NSA's warrantless wiretapping program in December, several civil suits have been filed challenging the legality of the program. In addition, lawyers in a half dozen criminal cases have asked for evidence obtained by warrantless wiretapping.
Government officials have responded by filing secret responses not available to opposing counsel or the public. Judges have generally ruled in favor of the government without explaining why.
In the Al-Haramain case, lawyers for the charity filed a classified document under seal that they say supports their claim that the government illegally intercepted phone calls.
In March, The Oregonian filed a motion seeking to unseal the classified document in order to expose possible illegal conduct by government officials.
In a public response, the government admitted that the classified document was inadvertently turned over to a lawyer for Al-Haramain in August 2004. But government officials said the public had no right to classified information.
"Any disclosure of that document would be of grave injury to national security," Andrea Marie Gacki, an attorney with the U.S. Department of Justice, said during Tuesday's conference call.
But in legal papers, Al-Haramain lawyers questioned how much of a threat to national security the document really is. The FBI didn't attempt to retrieve it for two months after it was inadvertently released. And if the document was so crucial that it must now be kept in a secure facility, how did it end up in a stack of documents that was disclosed to Al-Haramain lawyers?
"Where is the grave threat to national security?" Steven Goldberg, a Portland attorney representing Al-Haramain, asked during the conference call.
King said he would consider those questions when deciding whether to unseal the document.
"These facts could cause the court to question the conclusory statements regarding the classification and national security effect," he said.
In addition to their public filing, government lawyers filed a secret declaration to the judge to explain what is in the classified document.
"We felt it was necessary to describe to you the nature of the document and what it reveals," said Anthony J. Coppolino, a U.S. Justice Department lawyer. "If you were to review this declaration, for instance, you would already have begun to understand some details regarding our position."
Coppolino argued that King clearly had authority to review secret filings by the government to protect national security.
But Goldberg argued against the judge reviewing documents that the plaintiffs do not have access to.
"There is a difference between allowing documents into the public record and not allowing plaintiffs' attorneys access to those documents," he said.
The court has other options rather than reviewing government filings in secret. The court can issue protective orders to keep documents from general public view. And attorneys for the plaintiffs can get security clearances.
"The court really needs to send the government a clear message that the issues in the case will not be litigated in secret," Goldberg said.
While leaving his options open, King said he wanted to see more details in public, including general descriptions, before he would consider reviewing documents not available to opposing lawyers.
But, he added, "I understand that in issues involving national security that may be necessary."
©2006 The Oregonian